The More You Gain, the More You Lose: Sentencing Insider Trading Under the U.S. Sentencing Guidelines

October 7, 2010

Insider trading defendants are sentenced under the general economic crime provisions of the U.S. Sentencing Guidelines. These provisions provide a chart, which prescribes a gradually increasing offense level based on “the gain resulting from the offense.” Only two circuit courts have yet to define “gain” for sentencing purposes, resulting in a split in methodology. Due to the tremendous weight the Guidelines place on the amount of “gain” when calculating a sentence, the potential result of using different methodologies to calculate “gain” is the difference between freedom and years of incarceration.

This Note examines the problems involved with both of the methods of calculating “gain” for sentencing purposes applied by the circuits. This Note proposes a reexamination and restructuring of the Guidelines’ economic crime provisions in order to focus the determination of a defendant’s sentence away from an unstable monetary figure and toward other factors that truly reflect the culpability of the defendant. This Note argues that a complete restructuring of the economic crime provisions is required to fulfill the original objectives upon which the Guidelines were created.

October 2010

No. 1